By Peter S. Vogel Special Masters can help Judges and parties in eDiscovery disputes and also reduce the cost of litigation. Also managing eDiscovery can be improved by using eMediators who can help simply eDiscovery disputes and reduce motion practice. My recent article in the Texas Lawyer discusses some of the benefits of eMediation and Special Masters in eDiscovery. Over the past 20 years I have served as a Mediator and Special Master in computer technology and Internet lawsuits, and since there is electronic evidence in every case my experience is that Mediation conference and using Special Masters can make eDiscovery less expensive. Court Ruled that Special Master in Anna Nicole Smith Abused Trial Court’s authority A California defendant challenged Texas jurisdiction, but the Judge had not determined if the Court even had jurisdiction, as a result the trial court violated the Texas Special Master appointment Rules by authorizing the Special Master to get the defendant’s hard drive and conduct a a complete search. This was the second time that the same appellate court ruled that the trial court exceeded its authority to appoint a Special Master in this high profile case. There are always limits on the authority of what a Special Master can do in a case which should be spelled out in the Order Appointing the Special Master. Notwithstanding the outcome in this case surely we will see more cases with Special Masters since there is so much electronic evidence. Peter S. Vogel is a trial partner at Gardere Wynne Sewell LLP where he is Chair of the Electronic Discovery Group and Co-Chair of the Technology Industry Team. Before practicing law he worked as a computer programmer, received a Masters in Computer Science, and taught graduate courses in information systems. For 12 years he served as the founding Chair of the Texas Supreme Court on Judicial Information Technology which is responsible for helping automate the Texas court system and putting Internet on the desktops of all 3,200 judges. Peter has taught courses on the Law of eCommerce at the SMU Dedman School of Law since 2000. Many of Peter’s topics are discussed on his blog www.vogelitlawblog.com.

By Holly Hayes In May, we wrote about Dr. Donde Plowman’s presentation in Austin where she spoke about the opportunity leaders have to create organizations where innovation can occur. One aspect of innovation in organizations, she believes, is the presence of conflict. So often, leaders are responsible for reducing conflict, but Dr. Plowman argues, conflict often results in innovation. She states, perhaps conflict in the organization means there is life in the organization. For more on Dr. Plowman’s research on how organizations change, read here. Dr. Plowman is Professor in Business and Department Head at the University of Tennessee. On this same topic, mediate.com posted a video of David A. Hoffman talking about “conflict being good in that it brings about change. While conflict can be scary, it can also have positive outcomes.” See his video here. David is a mediator, arbitrator, and Collaborative Law attorney at Boston Law Collaborative, LLC. A Nurses First article titled The Cost of Avoiding Conflict by Diane E. Scott, RN, MSN gives an example of how one nurse avoided conflict in the workplace: As a night shift charge nurse, I would dread working with a particular co-worker because of her negative attitude. She frequently complained about her patient assignment and rarely offered to help other nurses. I finally got to my breaking point and requested a transfer to another shift rather than work with her again. Rachel, RN. The article reviews a study called Silence Kills that demonstrates how avoiding conflict can have negative results. The study was conducted by Vital-Smarts and The American Association of Critical-Care Nurses (Maxfield, Grenny, McMillan, Patterson, & Switzler, 2005). Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. Ten percent of the healthcare professionals who took the survey stated that when they do address their concerns, they feel the outcome is improved performance and improved teamwork with their coworkers. When healthcare staff can learn to manage conflict well, they can become more effective in creating healthy environments for themselves and for their patients. While learning conflict resolution skills can require unlearning some practices and reaching outside a staff member’s comfort zones, the result can be greater personal and professional growth. We welcome your comments on the positive results of conflict. Holly Hayes is a mediator at Karl Bayer, Dispute Resolution Expert where she focuses on mediation of health care disputes. Holly holds a B.A. from Southern Methodist University and a Masters in Health Administration from Duke University. She can be reached at holly@karlbayer.com.

By Kent B. Scott and Cody W. Wilson The success of mediation is mainly determined by the parties. It is their process and they are in control of the ultimate result. While there is no guarantee that any mediation will succeed, there are some common elements found in successful mediations: The mediator selected by the parties had the skills, knowledge and style (i.e., evaluative or facilitative) that fit the dispute and personalities involved in the mediation. People with knowledge of the dispute and others with authority to settle on each side’s behalf were present at the mediation. The parties exchanged enough information to be able to understand the positions and perspectives of the other. The attorneys and the party representatives were well prepared to mediate. The parties identified their respective needs and interests and formulated proposals that would satisfy the interests of each participant. The mediator, the parties and their attorneys were committed to making the mediation work. They did not give up on the process too early and were willing to explore all available avenues and options. Conclusion Mediation is very effective in helping parties settle all kinds of disputes. But to work, the parties must remain flexible and avoid “drawing a line in the sand.” Nothing brings the mediation to an impasse quicker than focusing on the “bottom line” approach. The parties select the mediator they want to serve as a catalyst in negotiations. The parties control the ultimate outcome. The questions and answers presented here identify the information parties need to know in order to decide whether to mediate, as well as the information they need to know to be prepared to engage effectively in mediation. The parties’ reactions to this information is highly germane to the means and methods that will be used in the mediation. Thus, after learning the client’s reactions and their preferences for the mediation, counsel should convey this information to the mediator so that they can design the appropriate mediation protocol. Mediators should also be interested in the questions that parties ask their counsel about the mediation process so that they can be aware of unstated concerns in private caucuses. [Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.] Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution. Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com. ?

Peter S. Vogel, trial partner at Gardere Wynne Sewell LLP and contributor of this blog will host “Social Media: eMail, SPAM, Spyware, and Phishing,” a State Bar of Texas Webcast on Wednesday, July 28th 12:30-1:30pm CST. DESCRIPTION: The Internet has transformed communications as evidenced by the current estimate that over 210 billion emails are sent daily, 50 million tweets are sent daily, and over 1.5 trillion text messages were sent in 2009. So the impact of SPAM and Phishing has never been greater, and undoubtedly will continue to grow. Botnets and Spyware are omnipresent as they are integrated into the billions of emails sent each day. Without question Social Media has had a significant impact on Internet users on the likes of Facebook, MySpace, YouTube, LinkedIn, Yelp, and dozens of other Internet sites. This webcast will explore issues that confront all lawyers and clients in 2010 and the future. Find out more here. Technorati Tags: law, ADR, arbitration